FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff-Appellee, v. JEFF MILLER STABLES, et al., Defendants-Appellants, 573 F.3d 289

OPINION JULIA SMITH GIBBONS, Circuit Judge. Jeff and Lori Miller, husband and wife (“Jeff’ and “Lori” or “the Millers”), along with their horse-racing operation Jeff Miller Stables and its predecessor in interest Miller Brothers Stables, appeal from the order of the district court requiring them to pay more than $2 million in restitution to the Federal Deposit Insurance Corporation (“FDIC”) in its role as receiver for the failed Oakwood Deposit Bank Company. The Millers argue that the district court erred in granting

summary judgment for the FDIC because they raised multiple issues of material fact concerning the amount of recovery Ohio law entitled the FDIC to receive. We disagree and hold that Jeffs conclusory statements, without more, are not enough to raise a genuine issue of material fact. Consequently, we affirm the judgment of the district court in its entirety. I. The facts giving rise to the instant litigation began to materialize on February 1, 2002, when the Oakwood Deposit Bank Company (“ODBC”) of Oakwood, Ohio, failed.

The FDIC took over ODBC as its receiver and commenced an investigation to determine the cause of the bank’s failure. Investigators quickly surmised that ODBC had failed because its chief executive officer, Mark Steven Miller (“Steve”), had engaged in a massive embezzlement scheme causing losses of more than $48 million. Steve pled guilty to charges of money laundering and embezzlement and is currently serving a 168-month sentence in federal prison.

With the criminal investigation at an end, the FDIC, in its role as ODBC’s receiver, began to attempt to recover for the bank some of the funds Steve had embezzled from the 1980s until the bank’s 2002 failure. The search for recoverable assets led the FDIC to probe the business relationship between Steve and his brother Jeff. Jeff and Steve were general partners in a horse-racing operation known as Miller Brothers Stables (“MBS”). MBS trained and raced standardbred horses — those that race while pulling a sulky, as in harness racing.

The brothers’ racing operation began in 1989 when Jeff purchased a 52.85 acre farm (the “Farm”) in Paulding County, Ohio, from which the brothers bred and trained their horses. At its zenith, MBS consisted of more than forty standardbred racing horses, a number of foals and yearlings, and a 47.5% stake in Eternal Camnation Stables. In his guilty plea and in an affidavit before the district court in this civil proceeding, Steve admitted that he embezzled the $65,000 Jeff used to purchase the Farm from ODBC.

Jeff denied that he had any knowledge of the funds’ illicit origin and instead asserted that he believed that the money was a legitimate loan from ODBC. He further claimed to have made regular payments on the $65,000 loan; however, according to Jeff, he made these payments directly to Steve rather than to ODBC. In 2001, Jeff and Lori joined with Steve, Steve’s wife Janet Miller (“Janet”), and another relative Seth Miller (“Seth”) to purchase 55.8 acres of land adjacent to the Farm (the “adjacent property”). Jeff and Lori owned a 48% share of the adjacent property.

Steve admitted to embezzling from ODBC the $128,340 purchase price for the property. The addition to the Farm, which more than doubled its original size, enabled the Millers to expand their horse-training and breeding operation. It also allowed their son to build a house on a portion of the adjacent property. Jeff and Lori assert that they did not know that Steve had embezzled the funds; they do, however, admit that they made no payments to ODBC or anyone else to repay the money used to purchase the adjacent property.

Following the failure of ODBC and Steve’s indictment, Jeff transferred all of MBS’s assets to a new sole proprietorship, Jeff Miller Stables (“JMS”), in which Steve had no interest. Jeff made the transfer because the rules of the United States Trotting Association (“USTA”) prevent any horse whose owner is under indictment from racing in a sanctioned event. The transfer of the assets from MBS to JMS occurred without the payment of any consideration. To aid its investigation, the FDIC hired a team of forensic accountants to examine ODBC’s books and to determine if any of the transactions were fraudulent.

The accountants traced the money Steve advanced from ODBC to various ledger accounts of MBS. If the accountants saw that the offsetting entries contained even a very general description such as “time deposit” or “note,” they did not label the underlying transfer of funds as fraudulent. Nor did the accountants label as fraudulent transactions between deposit accounts held by different entities Steve controlled. The accountants instead identified several specific ledger accounts as the source of fraudulent funds and traced those funds from the bank to the Miller-related entities.

The forensic accountants labeled only these funds as fraudulent. The accountants’ May 2004 report concluded that MB S received $1,722,223 in fraudulent transfers from ODBC. MB S also benefit-ted from $182,117 of fraudulent cashier’s checks drawn on ODBC and paid to third parties on MB S’s behalf, making the total amount of embezzled funds used by Steve to maintain MBS as a going concern $1,904,340. This sum was in addition to the funds Steve embezzled to purchase the Farm and the adjacent property.

Armed with this information, the FDIC filed suit against Jeff, Lori, MBS, and JMS on September 28, 2004, seeking disgorgement of the sums of money by which Jeff, Lori, and Jeffs horse-racing operations had been unjustly enriched. Importantly, the FDIC did not allege that Jeff and Lori had actual knowledge of Steve’s embezzlement scheme. On March 23, 2007, the district court- entered

summary judgment in favor of the FDIC as to the $65,000 used to purchase the Farm and the $61,870 used to purchase the adjacent property. The district court, however, denied

summary judgment as to the FDIC’s claim for the more than $1.9 million that Jeffs racing operation allegedly benefitted from the funds Steve embezzled from ODBC. The district court held that the FDIC had failed, to prove that Steve had not committed fraud on the partnership. Fraud on the partnership would prevent the imputation of knowledge of Steve’s embezzlement to Jeff and thereby prevent the FDIC’s recovery. See Ohio Rev.Code Ann. § 1775.11. Following this partial denial of its

summary judgment motion, the FDIC unsuccessfully sought reconsideration of the district court’s order and permission to file an interlocutory appeal. On August 31, 2007, the district court entered an order requiring the parties to brief the issue of who held the burden of proving fraud on the partnership under Ohio law. After hearing arguments from counsel, the district court concluded that Jeff, as the party asserting the exception, bore the burden of proving that Steve had defrauded the partnership.

The district court determined that in light of the evidence presented by both parties, Jeff had not carried his burden to prove fraud. The district court also held that the nearly two-hundred pages of purse receipts reflecting the earnings of MB S’s winning horses over the period from 1998-2001 did not undermine the forensic accountants’ conclusions. Consequently, the district court entered

summary judgment on the FDIC’s final claim in the amount of $1,904,340. The Millers timely filed their appeal. II. The Millers argue that the district court erred in granting

summary judgment on each of the three claims made by the FDIC for restitution. Jeff and Lori contend that genuine issues of material fact exist thereby making

summary judgment inappropriate. We review a district court’s grant of a

summary judgment motion de novo. Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir.2007).

Summary judgment is appropriate where there are no genuine issues of material fact in dispute, and one party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c) (emphasis added). The moving party may meet is burden by “ ‘showing’ ... that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “By its very terms, this standard provides that the existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A trial is required only when “there are any genuine factual issues that properly can only be resolved by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. 2505. Thus, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient” to require a trial, id. at 252, 106 S.Ct. 2505; but we must be careful to draw “all justifiable inferences” in the nonmovant’s favor. Id. at 255, 106 S.Ct. 2505.

Summary judgment is “an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action’ ” rather than a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). A. The Millers’ first assignment of error surrounds the district court’s granting

summary judgment in favor of the FDIC as to the $65,000 used to purchase the Farm in 1989. They make two arguments on appeal. Jeff and Lori first claim that Federal Rule of Evidence 609 required the district court to draw the conclusion that Steve, a convicted felon, lied in his affidavit when Steve asserted that he embezzled the $65,000. Additionally, they argue that a jury could reasonably find that they made payments on what they perceived to be a $65,000 loan from ODBC.

The FDIC responds by arguing that Rule 609 merely allows the impeachment of a party who stands convicted of a crime involving dishonesty rather than requires the district court to draw any negative inference. Consequently, the FDIC asserts that the district court properly granted

summary judgment as to the funds employed to purchase the Farm. Under Ohio law, in order for the FDIC to recover under a theory of unjust enrichment, it must prove that ODBC conferred a benefit upon Jeff, Lori, and Jeffs horse-racing operations; that they had knowledge of this benefit; and that it would be unjust for them to retain this benefit without payment. Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 465 N.E.2d 1298, 1302 (1984); see also Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 834 N.E.2d 791, 799 (2005). Unjust enrichment arises out of a contract implied in law. Hummel v.

Hummel, 133 Ohio St. 520, 14 N.E.2d 923, 925-26 (1938). “Contracts implied in law are not true contracts,” id. at 926, but instead are quasi-contracts implied by courts when a party “retains money or benefits which in justice and equity belong to another.” Id. at 927. Ohio law contains no requirement that a party have acted improperly for an action based upon quasi-contract to succeed. Reisenfeld & Co. v. Network Group, Inc., 277 F.3d 856, 860 (6th Cir.2002) (applying Ohio law). Passive retention of a benefit where such retention is “unconscionable” is enough to trigger liability. Cosby v.

Cosby, 141 Ohio App.3d 320, 750 N.E.2d 1207, 1213 (2001), rev’d on other grounds, 96 Ohio St.3d 228, 773 N.E.2d 516 (2002); see also Estate of Woodruff v. Istanich, 2008-Ohio-2103, at ¶ 14 (Ct.App.) (noting that whether retention of the benefit would be unconscionable is one element to consider before granting a remedy in an unjust enrichment claim). 1. Steve submitted an affidavit to the district court in which he admitted to embezzling the $65,000 in 1989.

The report of the forensic accountants does not contain a finding with regard to the $65,000 used to purchase the Farm because the accountants did not go back that far in time in their efforts to reconstruct ODBC’s books. The Millers argue that the district court erred by refusing to draw the conclusion that Steve, a convicted felon, lied in his affidavit.

Federal Rule of Evidence 609 provides in pertinent part: For the purpose of attacking the character for truthfulness of a witness ... evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of

an act of dishonesty or false statement by the witness. Fed.R.Evid. 609(a)(2) (emphasis added). Embezzlement is a crime of dishonesty that is always admissible to attack the character of a witness. McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir.1990). However, Rule 609 contains no language requiring the court to necessarily draw the inference that the witness’s testimony is untrue. See Guerrero v. White, No. 98-6342, 1999 WL 1282481, at *3, 1999 U.S.App. LEXIS 34488, at *8 (6th Cir.

Dec. 28, 1999) (noting that even after evidence of a past conviction is admitted under Rule 609, the witness’s “credibility remained a question for the trier of fact based on both his testimony and the inferences to be drawn from the record as a whole”). It is also inappropriate for a court to make credibility determinations when considering a motion for

summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (noting that credibility determinations “are jury functions, not those of a judge” (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505)). We therefore hold that it was not error for the district court to decline to draw an inference as to Steve’s credibility. 2. Jeff and Lori’s second argument is that a rational trier of fact could find that they had made payments to Jeffs brother on what they perceived to be a loan. In his affidavit in response to the FDIC’s motion for

summary judgment, Jeff stated that he and Lori “made payments by turning the checks over to Steve that we in turn received from a tenant who was purchasing a 20-acre parcel from us under land contract and from other sources.” (Aff. of Jeff Miller at 2.) Despite this assertion, the Millers failed to present the district court with a copy of even a single check that they turned over to Steve as partial payment on their obligation to ODBC. Nor did they present a bank statement showing a series of transfers at standard intervals from their account to Steve for similar amounts.

The Millers failed even to present or name one witness who could testify that they made a single payment to Steve on the purported loan. As the Supreme Court has held, “[wjhen the moving party has carried its burden under Rule 56(c),” including via a properly sworn affidavit, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).

Through their complete failure to provide any corroboration for their bare assertion that they made payments on the loan to Steve, the Millers have fallen far short of raising a genuine issue for trial. Jeff and Lori received $65,000 from ODBC and knew that they used the funds to purchase and enjoy the benefit of their 52.85 acre farm. Because Steve embezzled the money and the Millers have made no payments to ODBC, it would be inequitable for the Millers to keep the benefit of the Farm without repaying the funds used to purchase it to ODBC.

Cosby, 750 N.E.2d at 1213 (passive retention of a benefit where such retention is inequitable triggers liability). We therefore find that the district court did not err in granting

summary judgment to the FDIC in regard to the $65,000 used to purchase the Farm in 1989. B. Jeff and Lori next assert that the district court erred by granting

summary judgment on the FDIC’s claim for reimbursement of the $61,870 expended to purchase the 55.8-acre adjacent property. The Millers argue that it is inequitable to require them to pay for “land they will never enjoy” because the government has obtained a forfeiture order as to Steve and Janet Miller’s undivided one-half interest in the land. (App. Br. at 18.) Jeff and Lori further argue that even if restitution is proper, the district court erred in calculating the amount due by basing the award upon the amount lost by ODBC rather than the value gained by Jeff and Lori.

The Millers concede that they have failed to make any payments to ODBC on the “loan” used to purchase the adjacent property and further admit “that it would be unjust for them to keep the property without payment.” (App. Br. at 17.) The FDIC wholeheartedly agrees with this assessment and urges us to reject the Millers’ remaining arguments. Jeff and Lori’s first argument— that they have not benefited from ownership of the adjacent property — is without merit.

The Millers used the property, located next to the Farm, to aid in the expansion of Jeffs horse-racing operation and even allowed their son to build a home on part of the property. Under any definition of the term “benefit,” the Millers realized significant advantages upon acquiring their share of the adjacent property. It is also undisputed that Jeff and Lori have retained the money that ultimately came from ODBC and purchased the property without repayment. The FDIC seeks repayment of the money the Millers have improperly retained.

See Hummel, 14 N.E.2d at 927 (“[Ujnjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.”) (emphasis added). Because we find that Jeff and Lori have received significant benefits from their use of ODBC’s money, we hold that the district court did not err in its finding that the Millers knowingly received a benefit. Jeff and Lori’s second argument that the district court erred in its calculation of the restitution owed is also incorrect. The total purchase price for the property was $128,340.

Dividing this purchase price by 55.8 acres, yields a per-acre price of exactly $2,300. The district court then deducted the two acres of the adjacent property owned by Seth. This left 53.8 acres, which the district court divided evenly between Jeff, Lori, Steve, and Janet. Simple math yields the result that Jeff and Lori unjustly retained the benefit of $61,870, as the district court found. The Millers are correct that we have held that “the proper measure of liability is the reasonable value of services” provided. Reisenfeld, 277 F.3d at 862.

Ohio case law, however, further clarifies that “[t]he reasonable value of the benefit conferred is the monetary amount expended for the services provided.” City of Girard v. Leatherworks P’ship, 2005-Ohio-4779, at ¶ 41 (Ct.App.) (emphasis added) (citing St. Vincent Med. Ctr. v. Sader, 100 Ohio App.3d 379, 654 N.E.2d 144, 147 (1995)). The “service” provided by ODBC was the embezzled funds used for the purchase of the adjacent property. The Millers do not contest the purchase price of the property or the propriety of the district court’s determination of their ownership share therein.

Further, the report of the forensic accountants specifically labeled the entire sum used to purchase the 55.8 acre parcel as embezzled from OBDC. We therefore hold that the district court did not err under Ohio law in its calculation of the appropriate amount of damages owed to the FDIC. C. The final assignments of error involve the district court’s entry of

summary judgment as to the $1,904,340 the FDIC alleged MBS, and by extension JMS, benefitted from Steve’s embezzlement scheme. Jeff raises two primary arguments on appeal. First, Jeff argues that the district court erred by requiring him to prove that there was fraud on the partnership to invoke the exemption provided by Ohio Revised Code

Section 1775.11, rather than requiring the FDIC to prove that Steve did not defraud the partnership. Alternatively, Jeff asserts that even if the district court did properly hold that Jeff and the horse-racing operations are liable to the FDIC, the district court erred by declining to hold a trial on the proper amount of damages. We will consider each issue in turn. 1. Jeff argues that the district court erred in construing the provisions of

Section 1775.11 of the Ohio Revised Code, which allows a court to impute knowledge of an action taken by one partner to all partners in a partnership “except in the case of fraud on the partnership committed by or with the consent of that partner.” Ohio Rev.Code Ann. § 1775.11. In its order granting

summary judgment, the district court held that Jeff had the burden to prove that the exception applied. Because Jeff provided no concrete evidence, other than his own assertions of fraud, that Steve had defrauded the partnership, the district court granted

summary judgment in favor of the FDIC. We review the district court’s statutory construction of Ohio law under the same de novo standard that applies to

summary judgment generally. See BLE Int’l Reform Comm. v. Sytsma, 802 F.2d 180, 183 n. 4 (6th Cir. 1986). Jeff is correct that there is a dearth of Ohio case law interpreting

Section 1775.11. We, along with the district court, have been unable to find any ease law on point as to what party has the burden of persuasion on the issue of asserting the fraud-on-the-partnership exception. As with any other instance in which we must interpret a state law, “When there is no state [case]law construing a state statute, [we] must predict how the state’s highest court would interpret the statute.” United States v. Simpson, 520 F.3d 531, 535 (6th Cir.2008) (citing Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir.1999)).

The Ohio Supreme Court has provided clear guidance on the issue of who bears the burden of persuasion in proving exceptions to statutes in general: “The burden rests upon the party who, as the basis of his claim or defense, asserts that he is within an exception or an exemption in a contractual stipulation or a statute to prove all the facts necessary to bring himself within such exception or exemption.” Speidel v. Schaller, 73 Ohio App. 141, 55 N.E.2d 346, 351 (1943) (citation omitted); see also State ex rel. Nat’l Broad. Co. v.

City of Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786, 790 (1988) (“Under Ohio law, a person asserting an exception is required to prove the facts warranting such an exception.”); Carver v. Twp. of Deerfield, 139 Ohio App.3d 64, 742 N.E.2d 1182, 1185 (2000) (same). With the Ohio courts having consistently followed this general principle of statutory construction, we have no difficulty in holding that the district court did not err by requiring Jeff to bear the burden of proof in regard to the fraud-on-the-partnership exception contained within

Section 1775.11. 2. We next turn our attention to whether the FDIC provided the district court with sufficient proof as to the amount of money Steve embezzled to support MB S’s ongoing operations to allow the district court to grant

summary judgment. Jeff argues that he provided the district court with enough evidence to require a trial on the issue of whether, and in what amount, MBS benefitted from Steve’s embezzlement scheme. Specifically, Jeff notes that he provided the district court with nearly two hundred pages of reports from the USTA detailing the winnings that MBS horses, trainers, and jockeys earned in races from 1998-2001. These receipts reveal that MBS should have received $2,390,029 in revenue from its racing operation during those four years.

Because the total amount deposited in MBS’s accounts during the years in question was $3,519,782, Jeff argues that at most MBS was unjustly enriched by $803,436 — far less than the $1,904,340 judgment issued by the district court. There are several flaws with Jeffs argument. Jeff assumes that all of the funds MBS earned through its racing winnings actually made it into MBS’s bank accounts. The affidavit Jeff provided in opposition to the FDIC’s

summary judgment motion does not support this contention. Jeff stated, under oath, that “[ajlmost without exception, I turned all checks over to Steve Miller for deposit in the MBS account.” (Aff. of Jeff Miller at 6.) Viewed in the light most favorable to Jeff, all Jeff can demonstrate is that $3,519,782 in checks made it into the hands of Steve Miller. Jeff has not provided any bank records, copies of checks actually deposited, or his own accountants’ report to demonstrate how much, if any, of these funds Steve actually deposited.

By contrast, Steve’s affidavit affirmatively states that he embezzled “more than $1.8 million” to fund the ongoing operations of MBS. (Aff. of Steve Miller at 3.) The report of the FDIC’s forensic accountants only traced funds that originated at ODBC and made their way into designated accounts of MBS that did not contain even the most general of offsetting entries. Thus, the FDIC can trace $1,722,223 directly from ODBC into MBS’s accounts and another $182,117 from ODBC to third parties in satisfaction of debts owed by MBS. As the district court demonstrated in its order granting

summary judgment, Jeffs own mathematical calculations do not withstand scrutiny. The figures cited by Jeff as revenues inappropriately include the $182,117 of obligations to third parties that MBS paid with embezzled funds. Jeffs revenue figures also include winnings from Eternal Camnation Stables, an entirely separate partnership with separate accounts that the FDIC did not allege any embezzled money reached.

Upon subtracting the payments to third parties and Eternal Camnation’s winnings, the difference between the revenues that Jeff asserted MBS earned and the total deposits into MBS’s accounts equaled $1,129,753. As noted above, Jeff cannot demonstrate that any of these revenues actually made it into MBS’s accounts.

Jeff only can assert that he gave the checks to his brother Steve. (Aff. of Jeff Miller at 6.) The district court thus faced a set of figures whose authenticity a team of forensic accountants and numerous spreadsheets vouched for and a contrasting set of assertions by Jeff that included extraneous revenues from other business ventures and a lack of any proof that the funds ever actually reached MBS.

Summary judgment is appropriate where reasonable minds could not disagree as to the conclusion to be drawn from the evidence. Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (noting that

summary judgment and a motion for a directed verdict under Rule 50 are governed by essentially the same standard). Because the FDIC could trace the funds directly from ODBC to MBS, the district court did not err in granting

summary judgment in favor of the FDIC and holding that MBS received $1,904,340 in embezzled funds to support its ongoing operations. See id. at 252, 106 S.Ct. 2505 (noting that a court should grant

summary judgment where the evidence is “so one-sided that one party must prevail as a matter of law”). Our dissenting colleague takes issue with our analysis and argues that it is “uncontested” that Steve “handled all things financial,” “did all of the banking,” and “kept all of the records pertaining to the business.” (Dis. Op. at 305.) The quoted conclusory statements are all contained in Jeffs affidavit and are presented without elaboration. Yet, the FDIC presented evidence that, far from being a fiscal neophyte, Jeff maintained nearly complete control of MBS’s checkbook.

Out of 3,553 checks written on the account from January 1, 1998, until December 31, 2001, Jeffs signature appears on 3,547 of them. Jeff has not countered this evidence in any way. Jeff himself has provided us with nearly two hundred pages detailing the winnings of MBS’s steeds. Thus, far from being in the dark because of “Steve’s monopolization of MBS’s financial ... information,” (Dis. Op. at 306), Jeff had reason to know exactly how much MB S spent and what revenues it received.

Consequently, Jeff also had reason to know of the benefit conferred by the embezzled money because the racing revenues did not support the expenditures made — all that Ohio law requires to find unjust enrichment. Hambleton, 465 N.E.2d at 1302 (requiring solely knowledge of the benefit, not of the benefit’s origin, to find unjust enrichment). It is Jeff who bears the burden of proof as to the fraud on the partnership exception. See State ex rel. Nat’l Broad. Co., 526 N.E.2d at 790. Nonetheless, it is the FDIC that has come forth with the all of the hard evidence.

Jeff has failed to produce even one endorsed check to support his contention that Steve made all MBS’s deposits and “monopolized” MBS’s finances. The FDIC has provided 3,547 checks that prove otherwise. No rational juror could find that Jeffs bare assertions of ignorance outweigh this profusion of paperwork. Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (only when the factual issues “may reasonably be resolved in favor of either party” must a district court conduct a trial).

Despite the dissent’s protestations otherwise, this is hardly a case “in which one partner managed the business without the other partner’s involvement.” (Dis. Op. at 308.) Merchants Advance, L.L.C. v. Boukzam, 2008-Ohio-4860, 2008 WL 4356102 (Ct. App.2008), demonstrates that $1,904,340 represents the proper measure of damages under Ohio law. In Merchants Advance, the Ohio Court of Appeals faced a similar circumstance where the plaintiff sought to recover from the new owner proceeds from a loan made to a prior owner of a chain of restaurants.

The prior owner entered into an agreement with the plaintiff whereby the plaintiff would provide $242,000 to fund the restaurants’ normal business operations in return for the right to receive $350,000 from the restaurants’ future credit-card receipts. Id. at ¶ 6. After the plaintiff made the final advance of the $242,000, the prior owner transferred the restaurants to the new owner, who promptly breached the agreement by refusing to turn over any of the credit-card receipts. Id. at ¶ 8. The plaintiff sued, claiming that the new owner was unjustly enriched by the funds the prior owner had received. Id. at ¶ 10.

The Ohio Court of Appeals held that even though the prior owner had already spent the monies advanced by the plaintiff, and thus not retained them, the new owner had to refund the money the plaintiff loaned. Id. at ¶¶ 34-37. The benefit conferred by the plaintiff that the new owner retained was not the advanced money but rather the going concerns, ie., the restaurants whose operations the money funded. Id. at ¶ 34. The facts here are quite similar. The funds Steve embezzled allowed MBS to operate. After Steve’s indictment, Jeff transferred all of MBS’s assets to his new sole proprietorship, JMS.

The benefit Jeff retained was a going concern; he knew of this benefit, see Ohio Rev.Code Ann. § 1775.11; and it would be unjust to allow Jeff to retain the benefit. Thus, the district court did not err in ordering Jeff to pay restitution to the FDIC as receiver for ODBC in the amount of $1,904,340. Cf. id. at ¶¶ 34-37. While we have resolved all the legal issues, the dissent says one issue is yet outstanding — a concern that our resolution of this case is somehow unfair.

How can it be proper for Jeff Miller, whom we must and do assume was completely unknowledgeable of his brother’s embezzlement scheme, to find himself facing a judgment of more than $2 million? The dissent’s call for a jury to decide the issue highlights this quandary. We could respond by noting that it is not the province of the jury to decide issues of equity; the jury’s domain is only to decide those claims that are, or would have been, cognizable at common law. See City of Monterey v. Del Monte Dunes, 526 U.S. 687, 708-09, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999).

However, the dissent’s concern stems from its assumption that Jeff is also a victim in this case, along with the ODBC depositors, whose money Steve embezzled and in whose shoes the FDIC stands. Ohio’s elected legislature and courts have reasonably determined as a matter of public policy that where such a situation arises, absent fraud or some other affirmative defense, it is the original victim — here the FDIC — who is to be made whole. Cosby, 750 N.E.2d at 1213 (noting that passive retention of a benefit where such retention is “unconscionable” is enough to trigger liability).

As our job in this case is solely to apply Ohio law, our role is to apply Ohio’s resolution of this public policy question, not to second guess the determination or shift the question to a jury for further “equitable” deliberation. Ohio has already deliberated the issue. Commensurate with the our limited judicial role, we have enforced its decision about where the loss should lie. III. Because the defendants have failed to demonstrate that there is any “genuine issue as to any material fact,” the district court was correct to employ

summary judgment to find in favor of the FDIC as to its unjust enrichment claims under Ohio law. Fed.R.Civ.P. 56(c). We therefore affirm the judgment of the district court in its entirety and remand the case for further proceedings. . Eternal Camnation Stables houses the horse that retired in 2004 as the richest mare in the history of harness racing, having collected $3,748,574 in purses over her storied career. See Eternal Camnation Expecting, http://www. harnesslink.com/www/Article ,cgi?ID=30397 (last visited Apr. 30, 2009). .

Claims one and two, involving the funds used to purchase the Farm and the adjacent property, are against Jeff and Lori. Claim three, involving the funds embezzled to maintain MBS as a going concern, is against MBS, Jeff as a general partner of MBS, and JMS jointly and severally. . The $61,870 figure represents the value of Jeff and Lori’s proportional ownership share in the adjacent property. . On the issue of the proper measure of damages, we note that one might expect the FDIC to seek a reasonable rate of interest on the $61,870 Jeff and Lori have had use of since 2001.

The FDIC did not appeal the final order of the district court; therefore, we have no occasion to consider whether the FDIC could recover for the time value of ODBC’s money. Additionally, we take note of the FDIC’s stipulation that it will not seek a double recovery so that should Steve repay the entire $128,340 purchase price, the FDIC will not seek to collect the $61,870 judgment from the Millers. . For the purposes of

Section II.C of this opinion, “Jeff” refers to MBS, Jeff as a general partner of MBS, and JMS jointly and severally.